Recently introduced legislation, the Asylum Reform and Border Protection Act, sponsored by Representative Jason Chaffetz, would criminalize being an unauthorized immigrant in the US and also make it more difficult for applicants to prove a “credible fear of persecution claim” for US asylum. Included in the legislation is also a provision to help homeschoolers (and their families) persecuted in their home countries by granting up to 500 asylum claims per year based on persecution because of their preference for homechooling. Jürgen and Rosemarie Dudek, a German couple, who were sentenced to prison for three months because they were homeschooling their children, a practice that has been officially banned in Germany since 1938, could potentially benefit from such legislation. All Jürgen Dudek wants is “to be able to educate his kids without worrying about fines or prison” and said that the passage of the homeschool provision “would send a message to the German government that parents deserve the freedom to educate their children in the way they best see fit.”

Michael Donnelly, the director of global outreach for the Home School Legal Defense Association (HSLDA), which helped draft the bill, called it “groundbreaking” and said that a "'country that bans homeschooling is violating the basic human rights of their citizens.'" HSLDA also supported another German family, Uwe and Hannelore Romeike and their seven children, after a Tennessee judge initially granted the family asylum but the Obama administration overturned the decision, arguing that Germany’s homeschooling ban was not a form of religious persecution and therefore could not be used as a basis for US asylum. The Romeikes, like many homeschoolers, are religious and incorporate Christian teachings into their homeschool curriculum. While The Supreme Court declined to hear the family’s case, the Department of Homeland Security granted “deferred action,” allowing the Romeikes to remain in the US.

The homeschooling asylum provision, however, is puzzling to many, as it could actually weaken what has traditionally been a tough asylum standard. Stephen Yale-Loehr, an immigration professor at Cornell University Law School, "questions whether homeschooling bans rise to the level of persecution or whether they are more about discrimination and could set a more generous precedent, including those the overall legislation is intended to prevent." He said: "'Most courts have defined persecution as being something pretty significant...Generally, it’s hard to win asylum and they don’t want any decisions to make it seem easier to get asylum.'"

Representative Luis Gutiérrez questions whether it is right to offer asylum to homeschoolers while making asylum more difficult for those fleeing drug and gang violence. Gutiérrez said: “The Republicans have put homeschooling as a priority for asylum in the United States ahead of murder, rape, child abuse[.]'”